Kinney v. Robinson , 181 Ga. 837 ( 1936 )

Gilbert, Justice.

The petition alleges partnership; death of one of the partners; the act of one of the defendants in illegally taking possession of the partnership assets, books, and records, to the exclusion of the petitioner, the surviving partner; that such defendant is acting in his individual capacity and also as executor of the deceased partner; that as executor he is not required under the will to make bond or returns to the ordinary; that the assets consist of ehoses in action; that such defendant has made conflicting statements as to what disposition he has made of such assets; that on a previous settlement the deceased partner executed a due-bill acknowledging his indebtedness to that date. The prayers are that the defendant, as executor of the estate and in his personal capacity, show cause why he should not turn all funds, books, records, propertjr, and any bills against the partnership, which may be in his possession, over to the petitioner; that an accounting be had; that petitioner be given full control of all of the affairs of the said partnership for the purpose of winding up the business as expeditiously as possible; that Mrs. Marion Bobinson, widow of the deceased partner and beneficiary under his will, be made a party to the proceedings, and be enjoined from selling, transferring, or encumbering any of the partnership funds or property of the estate of W. E. Bobinson Sr., the deceased partner, pending the further order of the court; that the defendants show cause why bond for the protection of the petitioner should not be required of them by the court; that a receiver for the defendant, W. E. Bobinson Jr., be appointed, if the court consider this necessary for the protection of all concerned; that W. E. Bobinson Jr., as executor of the said estate and in' his personal capacity, be enjoined from selling, transferring, encumbering, negotiating, or in any manner disposing of the funds or property of the partnership, or encumbering or disposing of his own funds or property, pending the further order of the court, except that petitioner does not ask that the ordinary conduct of defendant’s automobile business be interfered with as to the actual buying and selling of automobiles; that W. E. Bobinson Jr. be enjoined from collecting any of the remaining partnership notes or mortgages or interfering with the partnership in any manner pending the further order of the court; that the petitioner be allowed reasonable attorney’s fees, such other equitable relief as he may be entitled to, and such damages as the court and jury may find him to be entitled to. W. E. Robinson Jr. filed a demurrer, as follows: “1. Said petition sets forth no cause of action against this defendant and shows no right of action in law or equity of the plaintiff to the relief prayed for. 2. That said petition appears on its face to have been brought within the twelve months exemption period from suit allowed by law to executors.” The record states that it was “understood that W. E. Robinson Jr., as executor, and Mrs. Marion Robinson, as executrix, each also filed the same demurrer on the same two grounds.” There is also in the record a “special plea” of no partnership; but since there was no ruling thereon, it should not have been included as a part of the record specified and certified to this court. Accordingly, the plaintiff becomes liable for the costs of including such plea, whatever the judgment of this court. The court sustained both grounds of the demurrer, and the petitioner excepted. In a brief opinion the trial judge explained that the first ground of the demurrer was sustained on authority of the Code of 1933, § 3-305, and the second ground for the reason that the petitioner had an adequate remedy at law.

The demurrer admits all of the facts above stated. We think the court misconstrued the petition to be a suit against the estate of W. E. Robinson Sr. If that construction be correct, the dismissal was proper, because the Code of 1933, § 3-305, provides that suits against the representative of any estate may not be brought “until 12 months after the probate of the will or the granting of letters of administration.” That Code provision applies to all cases where a suit seeks a recovery on some claim against the estate of the deceased. Manifestly, it affords no shield for one who, though the representative of a deceased person, wrongfully and illegally seizes and holds property that does not belong to the estate. The appointment of such legal representative gives him no authority to exercise control of the property of other persons or copartnerships. Ordinarily it only authorizes seizure of 'such property of the estate as he must and is entitled to have for the purpose of paying debts of the estate and expenses of administration. Every partnership is dissolved .by the death of one of the partners (Code of 1933, § 75-107), unless the partnership articles stipulate otherwise, or the terms of a valid will clearly and unambiguously show a contrary intention, and such is satisfactory to the surviving partner. The petition alleges nothing that would authorize a continuance of the partnership of W. E. Eobinson Sr. and the petitioner. Such being the case, the partnership assets rightfully belonged in the possession of the surviving partner, Kinney.- None of the assets could ever belong to the estate of Eobinson Sr. until all debts of the partnership be paid, including what may be due to the surviving partner. Ferris v. Van Ingen, 110 Ga. 102, 113 (35 S. E. 347). Under the allegations, it can not be ascertained whether the assets will be sufficient to pay all of such debts, and it is not necessary that the petition should go further than to show that the surviving partner has a valid claim on the assets, and that one of the defendants has illegally assumed possession. It is true that the due-bill was signed by Eobinson Sr. individually. The demurrer was good as to this item; but the petition alleges, though very loosely, that the partnership owed the petitioner air uncertain sum, and, because uncertain, an accounting is sought. A copartnership accounting falls within the jurisdiction of a court of equity.

The prayers of the petition are in substance set out in the statement of the case, and they include a prayer for general relief. Manifestly there are prayers for relief which can not be had. The court dismissed the suit in its entirety, refusing all relief. The petition is sufficient to withstand a general demurrer, because it sets out a cause of action for some of the relief, such as possession of the partnership assets, accounting, and judgment in favor of the petitioner for such an amount as an accounting may show to be legally due him, and perhaps other relief. This court will not be more specific at this time, because it is deemed proper to refer to the learned trial judge the opportunity to exercise his discretion in regard to the receivership, the allowance of attorney’s fees, and the like.

The judgment can not be affirmed, as insisted upon by the defendant in error, on the ground that “The assignment of error in the bill of exceptions is a single one to a collective judgment. There is no assignment of error to the sustaining of the demurrer of each of the defendants separately,” citing Johnson v. Leffler, 122 Ga. 670 (5) (50 S. E. 488). There is no merit in this contention. The case cited is not applicable. It clearly, appears that the three defendants filed separate bnt identical demurrers. The judgment applied to all alike, and one assignment was sufficient.

Judgment reversed.

All the Justices concur.